[JURIST] Nepalese officials said Friday that they had arrested more than 100 Tibetans for allegedly trying to take over the Chinese embassy in Kathmandu. Chinese media said the protesters were trying to use Nepal's vulnerability as a newly-formed republic [JURIST report] in order to push their "separatist" agenda [Xinhua report], but Human Rights Watch (HRW) issued a report [HRW materials; press release] Thursday saying that Nepal has been arresting peaceful Tibetan protesters without cause because of pressure from the Chinese:

At least 8,350 arrests of Tibetans were made between March 10 and July 18 (many people were arrested more than once). While the frequency of protests has diminished since May, protests have continued to take place on an almost weekly basis, with continuing abuses by Nepali authorities in response. Few of those arrested have been provided with a reason for their detention and virtually all have been released without charge.

Human Rights Watch has directly observed many of the Tibetan demonstrations in Kathmandu and the police response to them. From March 10 to 28, Nepali police consistently responded to the demonstrations with unnecessary or excessive force, using lathis to beat protesters in the head and body, and by kicking and punching them. Police officers have sexually assaulted Tibetan women during arrest. Many women and girls have reported male police officers groping them and kicking or hitting them with a lathi in the groin.

[JURIST] The United Nations Security Council [official website] on Friday discussed a report [link to PDF file] outlining UN Secretary General Ban Ki-Moon's plans [JURIST report] to reconfigure the UN Interim Administration Mission in Kosovo (UNMIK) [official website] now that the state's new constitution has entered into effect. Lamberto Zannier, whom Ban recently appointed [press release] as head of UNMIK and Special Representative to Kosovo, has already stated [press briefing, PDF] that he envisions a "radical" restructuring of the Mission. Speaking before the Security Council on Friday, Zannier stated that he can no longer enforce his authority [UN summary], meaning that he cannot promulgate laws or exert control over the rule of law efforts. The Security Council could not reach a consensus on the future of UNMIK and was unable to provide an advisory statement to Ban. AFP has more.

The new European Union Rule of Law Mission (EULEX) [official website] is expected to take over the rule of law area in Kosovo as UNMIK nears the end of its 120-day timetable for reducing operations and handing over responsibilities. After that time, EULEX will continue to function in an advisory role with some executive authority. Powers formerly reserved for the Special Representative have been re-allocated under the new constitution. The International Civilian Office [official website] will oversee progress under Kosovo's status settlement. Kosovo's new constitution [text] went into effect [JURIST report] in June.

[JURIST] The US Commodity Futures Trading Commission (CFTC) [official website] filed a lawsuit [text, PDF; press release and materials] Thursday against international trading fund Optiver Holding BV [corporate website] and some of its subsidiaries and employees, alleging that the company manipulated the futures prices of oil and gasoline in violation of the Commodity Exchange Act [7 USC s. 1 text]. The suit, filed in the US District Court for the Southern District of New York, alleges that for 11 days in March 2007, Optiver and some of its officials bought large numbers of futures contracts in certain oil and gasoline markets on the New York Mercantile Exchange (NYMEX) [official website], with the so-called TAS purchases requiring an initial agreement to pay either more or less than the closing bell price. Optiver and its agents would then trade the futures immediately before closing in the opposite direction they had agreed to earlier that day, and by doing so allegedly earned about $1 million. The complaint notes:

Optiver's strategy was to execute approximately 20-30 [percent] of its futures contract trades just before the Close and the remainder during the Close. Having accumulated a large net TAS position during the trading day, Defendants intended to - and on several occasions did - implement this strategy to trade a large number of futures contracts in the opposite direction just prior to and during the Close, thereby exercising their market power to improperly influence and affect the price of futures contracts in a desired direction.

[JURIST] Three Department of Justice (DOJ) [official website] memos [materials] released Thursday indicate that certain enhanced interrogation techniques, including waterboarding [JURIST news archive], are lawful and that those who employ them in good faith lack the specific intent required to be charged with torture. Under US law [18 USC s. 2340 text], torture involves "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control." In a heavily-redacted 2002 memo [text, PDF], then-Assistant Attorney General Jay Bybee wrote:

To violate the statute, an individual must have the specific intent to inflict severe pain or suffering. Because specific intent is an element of the offense, the absence of specific intent negates the charge of torture. As we previously opined, to have the required specific intent, an individual must expressly intend to cause such severe pain or suffering. We have further found that is a defendant acts with the good faith belief that his actions will not cause such suffering, he has not acted with specific intent. A defendant acts in good faith when he has an honest belief that his actions will not result in severe pain or suffering. Although an honest belief need not be reasonable, such a belief is easier to establish where there is a reasonable basis for it. Good faith may be established by, among other things, the reliance in the advice of experts. [Citations omitted]

[JURIST] The Arizona Court of Appeals [official website] ruled Thursday that a 2005 state law [text] aimed at prosecuting smugglers hired to ferry illegal immigrants across the border into the US can also be used to prosecute the illegal immigrants. The judge rejected arguments that the law infringed on the powers of the federal government to regulate immigration. The law had been used by Maricopa County authorities to prosecute illegal immigrants as members of a conspiracy for their own border crossing, despite comments by law co-author Arizona state Rep. Jonathan Paton [official website] that it was not intended for that purpose. Capitol Media Services has more.

Illegal immigration has long been a controversial topic in the border state of Arizona. In June, the Arizona State Legislature [official website] passed legislation [HB 2677, PDF; JURIST report] barring the state from implementing the REAL ID Act of 2005 [PDF text; JURIST news archive]. In April, two rights groups filed a lawsuit [complaint, PDF; JURIST report] in the US District Court for the District of Arizona challenging the constitutionality of Arizona's Proposition 100 [PDF text], which denies bail to illegal immigrants accused of committing serious felonies. Last year, a coalition of civil rights groups filed a federal lawsuit [complaint, PDF; JURIST report] challenging an Arizona law aimed at preventing employers from knowingly hiring illegal immigrants [JURIST news archive].

[JURIST] A judge for the London High Court [official website] on Thursday ordered a British man to pay approximately $44,000 in damages for creating a fake profile on social networking website Facebook [corporate website] and posting defaming information about an acquaintance, Mathew Firsht. The judge found that the postings were libelous regarding both Firsht and a business he operates, and that factual personal information included on the page violated his privacy. Because posting false information is fairly easy and false profiles are commonly found on many social networking sites, people may not realize that what they are doing could have legal consequences under defamation laws. A lawyer for Firsht said she hopes the ruling will set a new accountability standard. AP has more. BBC News has additional coverage.

Last week, Facebook filed a copyright infringement claim [case materials] against a German competitor in the US District Court for the Northern District of California [official website]. Facebook accused StudiVZ [corporate website, in German] of copying the "look and feel" of the American version of Facebook, saying that StudiVZ's success is largely due to this imitation. StudiVZ filed a petition [press release, in German; News.com report] in a German court on Sunday, calling the lawsuit baseless and seeking a declaration of non-infringement.  Last month, a California judge granted a motion [order, PDF; JURIST report] to enforce an intellectual property settlement agreement between Facebook and ConnectU [corporate website]. The ruling effectively ended the two companies' ongoing legal battle [case materials] concerning ownership of source code forming the basis of Facebook.

[JURIST] House Financial Services Committee [official website] Chairman Barney Frank (D-MA) said during a Committee hearing [materials] Friday that providing inducements to those who hold liens was the only practical legislative solution to the country's so-called "sub-prime mortgage collapse," and that House legislation passed Wednesday will effectively provide those inducements. The Foreclosure Prevention Act of 2008 [HR 3221 materials; House debate video, flash] provides for government grants allowing municipalities to buy and redevelop foreclosed properties, and would allow the federal government to provide additional financial backing to the publicly supported Fannie Mae and Freddie Mac [corporate websites] mortgage companies. The bill passed [JURIST report] by a vote of 272-152, and Frank said it is expected to be approved by the Senate later this week. Rep. Maxine Waters (D-CA) supported the legislation during Friday's hearing but also stressed her support of the proposed Foreclosure Prevention and Sound Mortgage Servicing Act of 2008 [HR 5679 materials and text], which would require mortgage lenders to offer loss-mitigation programs for mortgagees in danger of foreclosure. She said that without the imposition of such a statutory duty on lenders, consumers would have little leverage and protection against predatory lending.

Earlier this month, the Federal Reserve Board approved new rules for home mortgage loans [draft regulations, PDF; JURIST report] designed to reduce unfair lending practices and increase consumer protection. In June, the Federal Bureau of Investigation (FBI) [official website] announced that more than 400 people had been indicted [press release; JURIST report] for fraud involving individual mortgages and the US Attorney's Office for the Eastern District of New York [official website] announced the indictments [text, PDF; press release] of two senior hedge fund managers at Bear Stearns [corporate website] for allegedly misleading investors even after they knew their mortgage-related funds were at serious risk of collapse.

[JURIST] The European Court of Justice (ECJ) [official website] ruled [case materials; press release] on Friday that the right of EU citizens to live in any EU member state also extends to non-citizen spouses and relatives. Four Irish couples brought the case, appealing deportation orders issued by the Irish Ministry of Justice, Equality and Law Reform [official website] because one member of each couple was not a legal citizen of any EU country. The court found that Directive 2004/38/EC of the European Parliament [PDF text] guarantees that foreign nationals married to EU citizens can live in their spouses' home countries:

It must also be pointed out that Articles 5, 6(2) and 7(2) of Directive 2004/38 confer the rights of entry, of residence for up to three months, and of residence for more than three months in the host Member State on nationals of non-member countries who are family members of a Union citizen whom they accompany or join in that Member State, without any reference to the place or conditions of residence they had before arriving in that Member State.

[JURIST] A Maryland judge Thursday rejected a challenge seeking to remove a referendum on a transgender anti-discrimination law [Bill 23-07 text] from the November ballot. Circuit Court Judge Robert A. Greenberg ruled that the Montgomery County Board of Elections [official website] had miscalculated the number of signatures [Washington Post report] that proponents [Maryland Citizens for Responsible Government website] needed to gather before the referendum could be certified. However, Greenberg also found that the challenge filed by transgender rights advocates Equality Maryland [advocacy website; press release] had missed the filing deadline to have the initiative removed from the ballot. The County Council unanimously approved the measure last year, and it was subsequently signed into law by County Executive Isiah Leggett [official websites]. AP has more. The Washington Post has local coverage.

Earlier this month, the California Supreme Court rejected [conference actions list, PDF; JURIST report] without comment a challenge [petition, PDF] seeking to remove a November ballot initiative that would ban same-sex marriage in that state. The petition, filed by Equality California, the National Center for Lesbian Rights, Lambda Legal and the American Civil Liberties Union [advocacy websites], argued that the amendment would deprive same-sex couples of fundamental rights. If approved by voters, the California Marriage Protection Act [ballot materials, PDF; proposition website] would amend the state constitution [text] to read, "Only marriage between a man and a woman is valid or recognized in California." That ballot initiative comes in reaction to a May 15 California Supreme Court decision [opinion, PDF; JURIST report] overturning a ban on same-sex marriage in the state. In May, the California Office of Vital Records [official website] issued a memorandum [JURIST report] setting June 17 as the start day for issuing marriage licenses to same-sex couples. The court's May 15 decision stemmed from San Francisco Mayor Gavin Newsom's 2004 decision to issue marriage licenses to 4,000 same-sex couples [JURIST report].

[JURIST] An Argentine court sentenced former general Luciano Benjamin Menendez [Project Disappeared profile] and four others to life in prison on Thursday for the 1977 kidnapping, torture, and killing of four political dissidents during the country's so-called "Dirty War" [GlobalSecurity backgrounder; JURIST news archive]. Three others have been sentenced to extended jail terms since the case went to trial in May [JURIST report]. Menendez, who commanded the secret prison "La Perla" [HRT backgrounder] for the country's military dictatorship during the late 1970s, was originally taken into custody in 2005 when a judge ordered his arrest [JURIST report] in connection with a separate murder. Menendez, now 81, requested continued house arrest, but his request was denied. AP has more. The Buenos Aires Herald has local coverage.

It is estimated that between 20,000 and 30,000 people were forcibly kidnapped or "disappeared" during the Argentine government's campaign against suspected dissidents during the country's "Dirty War." In 2005, Argentina's Supreme Court struck down amnesty laws [JURIST report] adopted in the 1980s to protect potential defendants, prompting the government to reopen hundreds of human rights cases. In March, Argentinean politician and former police chief Luis Abelardo Patti was also arrested for crimes allegedly committed during the period. In May, Juan Evaristo Puthod, a victim of the violent suppression, was kidnapped but later released [JURIST reports] before testifying in a third case.

[JURIST] Lawyers and professors testified [hearing materials] before the House of Representatives Committee on the Judiciary [official website] Thursday that the government process used to arrest and convict illegal immigrants in Iowa in May was illegal and violated the immigrants' due process rights. In May, US Immigration and Customs Enforcement (ICE) [official website] officials raided an Agriprocessors Inc. [corporate website] meatpacking plant in Iowa and arrested 389 illegal immigrant workers. Over four days, 270 of those arrested were each sentenced to five months in prison [ICE press release; JURIST report] and 27 more received probation after pleading guilty to the use of false immigration documents. Following the sentencing, a New York Times report [text] suggested that it was uncommon for illegal immigrants to face criminal prosecution as opposed to civil charges and deportation. During the Committee hearing Thursday, American Immigration Lawyers Association (AILA) [advocacy website] vice-president David Wolfe Leopold reiterated the group's previous criticism [letter, PDF] of the convictions process, saying [testimony, PDF]:

A prosecutor’s professional, moral, and ethical duty is to do justice, not merely to convict. This cardinal principal was ignored by the government in its zeal to criminalize undocumented workers. In essence, the expedited justice or "Fast Tracking" system concocted by the government, with the willing assistance of the US District Court for the Northern District of Iowa, was a conviction / deportation assembly line which could not be burdened with protecting the fundamental rights of the defendants, mostly poor uneducated Guatemalan farmers.

[JURIST] The US Court of Appeals for the Seventh Circuit [official website] held [opinion, PDF] on Thursday that a 2002 reapportionment of voting boundaries in the city of Aurora, Illinois [official website] did not violate the Voting Rights Act (VRA) [text; DOJ backgrounder]. The plaintiffs in Gonzalez v. City of Aurora unsuccessfully argued [oral argument audio] that having two Hispanic aldermen out of a total of twelve is insufficient representation for the city, which has a 32.6% Hispanic population. The plaintiffs advocated a redistricting plan to redraw the boundaries of three of the city's wards in order to achieve a 70% Hispanic concentration, which they said would ensure the election of a Latino candidate. The court analyzed the language of the VRA, relying on a US Supreme Court decision [JURIST report] for guidance:

Section 2 requires an electoral process “equally open” to all, not a process that favors one group over another. One cannot maximize Latino influence without minimizing some other group’s influence. A map drawn to advantage Latino candidates at the expense of black (or white ethnic) candidates violates §2 as surely as a map drawn to maximize the influence of those groups at the expense of Latinos.

The Supreme Court emphasized in League of United Latin American Citizens v. Perry, its most recent §2 redistricting case, that the Voting Rights Act protects the rights of individual voters, not the rights of groups.

What we can see from the record suggests that Latinos are not concentrated enough to support three “Latino effective” districts without serious gerrymandering... In other words, the Latino population is not concentrated in a way that neutrally drawn compact districts would produce three “Latino effective” wards.

[JURIST] Ecuador's special assembly charged with rewriting the nation's constitution [text, in Spanish] provisionally approved a new constitution on Thursday. The draft includes unprecedented measures [AP report] giving the president the power to remove Congress in the first three years of a four-year term, to control monetary policy, and to seek re-election for an additional four year term. Ecuadorean President Rafael Correa [official website, in Spanish; personal website], who has led the call for constitutional reform, has pushed for restraints on powerful political parties [JURIST report], freedom from foreign influence, increased governmental accountability, and regional - rather than national - elections. Critics fear that Correa will follow the example set by Venezuelan President Hugo Chavez [BBC profile; JURIST report] in using the reforms to expand his presidential powers. The new constitution must pass in a national referendum before it can take effect. BBC News has more.

The approval comes more than a year after a national referendum where voters overwhelmingly approved measures for constitutional reform [JURIST report], including establishing the Constitutional Assembly. Correa pledged to rewrite the country's constitution [JURIST report] following his leftist coalition's landslide victory [JURIST report] in Constitutional Assembly elections in October 2007. Correa's Alianza PAIS party [official website, in Spanish] has a majority in the Constitutional Assembly, holding 80 out of 130 seats. In November 2007, the Assembly suspended Ecuador's congress [JURIST report] pending approval of the new charter in a nationwide referendum. The vote on the new constitution is expected to be held on September 28.